State v. Legrand

• Decision Date: 27 November 2013
• Docket Number: No. 108,389.,108,389.
• Citation: State v. Legrand, 313 P.3d 837 (Kan. App. 2013)
• Parties: STATE of Kansas, Appellee, v. Jesse W. LeGRAND, Appellant.
• Court: Kansas Court of Appeals

313 P.3d 837

STATE of Kansas, Appellee,

v.Jesse W. LeGRAND, Appellant.

No. 108,389.

Court of Appeals of Kansas.

Nov. 27, 2013.

Appeal from Sedgwick District Court; Jeff Goering, judge.Affirmed.

Patrick H. Dunn and Carol Longenecker Schmidt, of Kansas Appellate Defender Office, for appellant.

Matt J. Moloney, assistant district attorney, Marc Bennett, district attorney, and Derek Schmidt, attorney general, for appellee.

Before ATCHESON, P.J., ARNOLD–BURGER, J., and BUKATY, S.J.

MEMORANDUM OPINION

PER CURIAM.

This case involves an incident that took place between Jesse LeGrand and Kelsi Gunnels, a young couple with a volatile history during their 4–year, off-and-on dating relationship.LeGrand and Gunnels gave the jury two entirely different accounts of what happened when LeGrand entered Gunnels' home through a window in the early morning hours of August 5, 2011.The jury found Gunnels' account more credible and convicted LeGrand of aggravated burglary, criminal threat, and criminal restraint.LeGrand raises five issues in this direct appeal.

First, he alleges several incidents of prosecutorial misconduct in closing argument.Although we find that the prosecutor did err in denigrating defense counsel in a manner not supported by the evidence, we find the error was harmless given the overwhelming evidence of LeGrand's guilt.

Next, LeGrand alleges that his aggravated burglary conviction must be reversed because the State failed to present sufficient evidence to support the alternative means by which the predicate crime of theft could be committed.But we find that the alternative means rule is not implicated here because LeGrand was not charged with and the State did not have to prove that he committed theft.

In his third issue on appeal, LeGrand challenges the trial court's decision to instruct the jury that it could find him guilty of criminal restraint as a lesser included offense of the charged offense of kidnapping.Because we find that criminal restraint is a lesser included offense of kidnapping and there were facts to support the giving of the instruction, there was no error.

Next, LeGrand argues the variance between the pattern instruction on the State's burden of proof and the instruction given precludes us from being certain that the jury held the State to the proper burden of proof.However, our Supreme Court has already decided this issue contrary to LeGrand's position, and we are duty bound to follow that precedent.

In his fifth and final issue on appeal, LeGrand complains that the sentencing court's use of his prior convictions to impose an enhanced presumptive sentence violated his constitutional rights.LeGrand acknowledges that the Kansas Supreme Court has decided this issue contrary to his position.And again, because we are duty bound to follow that precedent, his final claim of error also fails.

For all of these reasons, we affirm.

Factual and Procedural History

The State charged LeGrand with one count each of aggravated burglary, kidnapping, and criminal threat as a result of his interactions with Gunnels in the early morning hours of August 5, 2011.LeGrand's and Gunnels' very different accounts of what happened that morning, given at a 3–day jury trial, are detailed to provide context for some of the arguments being raised on appeal.

The State's version of events showed LeGrand victimizing Gunnels .

Gunnels described for the jury how around 4 a.m. that morning she was asleep in her mother's bed at her home in Goddard, when LeGrand woke her up by leaning over her and shining his cell phone light in her face.Gunnels was scared because she had recently broken up with LeGrand, who had beaten her throughout their relationship.In fact, she still bore bruises from the most recent beating.Gunnels' mother had even banned LeGrand from her home because of a domestic violence incident a year prior, during which he pushed and injured Gunnels.

Gunnels' fears escalated as she and LeGrand argued and she refused his requests that she leave with him.At one point, while they were still in the bedroom, LeGrand grabbed Gunnels, held her head down, and warned that if she screamed, he would stab her in the neck.After they moved into the living room, LeGrand tried to keep Gunnels quiet out of fear of waking her brotherAdam Gunnels, at times threatening to kill either Gunnels or her family if he could not get to her.They eventually went outside, where Gunnels ran, screaming, and tried to alert a neighbor by ringing the doorbell.But those efforts failed.LeGrand soon caught up to her, covered her mouth, and took her to hide out of sight between her neighbors' homes.

LeGrand and Gunnels' argument eventually startled Adam awake.After hearing them leave the house, he ran outside and called for his sister.Out of fear for his safety, Gunnels told Adam to go back inside “if [he][knew] what's good for [him].”Adam, who was aware of his sister's sometimes violent history with LeGrand, complied but immediately called 911.

LeGrand made Gunnels get into the passenger seat of her car, which he then drove around to his car that he had parked in the block behind Gunnels' home.As LeGrand got into his car, he ordered Gunnels to drive to his apartment, warning that he would “hurt [her]” if she did not comply.As they drove toward Wichita, LeGrand pulled up next to Gunnels more than once and threatened he was going to kill her if she did not follow his instructions.Gunnels, nonetheless, disobeyed and began driving erratically, eventually attracting the attention of Deputy Justin Manning, who had heard the bulletin warning of Gunnels' possible abduction.As Manning pulled his police car behind Gunnels' car, she pulled into the parking lot of a Kwik Shop, got out of her car, ran to Manning, and anxiously reported what was happening.

Gunnels ultimately gave verbal, written, and video recorded statements to the police about what had happened that morning before she returned home with a police escort.Gunnels' statements were described as sometimes sporadic and not always consistent.

A subsequent investigation corroborated Gunnels' general report of what had taken place.For example, when she arrived home with a police escort, a window screen that had been cut and removed was found lying on the ground.Subsequent testing also revealed LeGrand's fingerprint was on the window.Gunnels soon discovered that three lottery tickets (Powerball, Kansas Cash, and a scratch-off ticket) and ten $10 bills that her mother had left her to pay for food and gas while she was away were missing, which she reported to the police.When LeGrand was later questioned and arrested, the police found five $10 bills and a lottery scratch ticket on his person.They also found a Kansas Cash ticket with Gunnels' name on it in LeGrand's apartment.

Gunnels openly admitted that her testimony at LeGrand's preliminary hearing varied from her trial testimony.She explained to the jury that she had lied during the preliminary hearing for several reasons, including because she still loved LeGrand; because he had written her a letter that requested she either not appear or tell a different version of what took place; and because she had received threatening phone calls from members of LeGrand's family.

LeGrand's version of events showed a consensual encounter with Gunnels that ended in an argument.

LeGrand testified to a vastly different account of the events surrounding that morning.According to LeGrand, Gunnels had come to his apartment the prior afternoon, told him her mom was going to be out of town that night, and invited him to come over to spend the night.When LeGrand arrived, he tapped on Gunnels' mother's bedroom window as she had directed.Gunnels woke up and directed LeGrand to her own bedroom window.After he removed the screen and stumbled into a rose bush (he was admittedly drunk), Gunnels helped him sneak inside—something they had done several times in the past.She was not happy about his delay brought about by a night of drinking with his friends, which led to an argument.

According to LeGrand, they argued for about 15 minutes before deciding to go sit in Gunnels' SUV in her driveway, where they smoked marijuana and had sex.Afterwards, they finished smoking the marijuana and talked for a while.During that talk, Gunnels handed LeGrand five $10 bills and a $5 winning lottery ticket and told him to use the money to buy her marijuana for the upcoming weekend.She also gave him a Powerball ticket and asked him to check to see if it was a winner.Gunnels eventually went back inside her house as LeGrand locked up her car, sat on her porch, and smoked a cigarette.

Yet another heated argument ensued after Gunnels returned to the porch and saw LeGrand texting someone, which she suspected to be another girl with whom LeGrand had been cheating.LeGrand finished his cigarette and went back inside, where they continued to argue.Tired of fighting, LeGrand eventually told Gunnels that their relationship was over.Gunnels grew even angrier when LeGrand told her he was planning to go to Colorado to visit his mother, so he told her that he slept with her best friend in order to “seal the deal.”At that point, Gunnels “[blew] up,” and LeGrand ran outside and hid between two neighbors' homes after he heard Adam wake up.Gunnels followed him.Adam then came outside and found them.Gunnels refused his command to return home and ordered him to “just go back inside” because “this [was] none of [his] business” and had “nothing to do with” him.

LeGrand described how Gunnels then willingly left in her car with him after Adam went back inside.After dropping LeGrand off at his car in the block behind her house, LeGrand told her to head to his apartment in Wichita, so they could continue their discussion.As they drove into Wichita, Gunnels eventually pulled to the side of the road and told LeGrand that she needed to return home to get her clothes,...